Standing Committee E

[Mr. Peter Atkinson in the Chair]

Communications Bill

Clause 361 - Newspaper public interest considerations

Question proposed [this day], That the clause stand part of the Bill. 
 Question again proposed.

Stephen Timms: We have had an interesting discussion on the clause. I listened carefully to the case made by the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale), who clarified his point helpfully. I think that he was not arguing against the inclusion of clause 461, but rather speaking as though there were an amendment that would delete new subsection (2A) to section 58 of the Enterprise Act 2002 and leave in place only new subsection (2B), the plurality part of the provision. He accepted that it was appropriate to have a special regime for newspapers, but explained why he was not happy with the one proposed in the Bill. He went on to suggest that the wording in subsections (2A) and (2B) would open the door to a number of undesirable consequences.
 First, I should like to explain where the wording of subsections (2A) and (2B) comes from. Subsection (2A) makes reference to two matters that should be taken account of, the ''accurate presentation of news'' and ''free expression of opinion''. Those have been on the statute book for a very long time. I took the opportunity of the lunch break to look through my well-thumbed copy of the Fair Trading Act 1973. Section 59(3) says that 
''the Commission shall report to the Secretary of State whether the transfer in question may be expected to operate against the public interest, taking into account all matters which appear in the circumstances to be relevant and, in particular, the need for accurate presentation of news and free expression of opinion.''
 Those are exactly the words used in subsection (2A). In fact, the 1973 wording is, as the Committee will have noticed, a good deal wider, because it refers to taking into account 
''all matters which appear in the circumstances to be relevant''.
 In other words, anything may be taken into account, but particularly the need for the two points in subsection (2A). 
 Subsection (2B) on the test of plurality, for which the hon. Member for Maldon and East Chelmsford gave support, has not appeared in legislation before, although the principle can be inferred from the outcome of cases that have been examined. It will be clear to the Committee that the new form of wording in the clause is significantly narrower than in the old. We are not, as the hon. Gentleman argued, opening the door to some new and dangerous developments. 
 Actually, the phrasing of the clause is significantly tighter and narrower than was the case under the Fair Trading Act 1973, which has, in the view of most people, operated very well during past 30 years. 
 It would be possible to have, as the hon. Gentleman argued that we should, only a plurality test, in other words we could remove the historic wording of subsection (2A) and leave subsection (2B). The Committee should reflect for moment on whether that would be a good idea. 
 The hon. Member for South Cambridgeshire (Mr. Lansley) referred to the celebrated 1990 case involving David Sullivan and the Bristol Evening Post. The Monopolies and Mergers Commission concluded that the evidence of David Sullivan's connection with the Daily Star and his holdings in the Daily Sport and the Sunday Sport, to which we referred this morning, suggested that he would seek to influence editorial policy, the character and the content of the newspapers in a manner that would harm both the accurate presentation of news and the free expression of opinion. That acquisition, or merger, was stopped because reference was made to the two criteria in subsection (2A). It is hard to determine whether such an acquisition would have been stopped if reference had been made only to the plurality test in that case. One might say that the fact that Mr. Sullivan was unable to acquire the Bristol Evening Post was the result of an unfortunate and undesirable decision. Most people, however, would agree that that decision was correct in the circumstances and should such a situation arise again, we would surely wish to be able to come to the same conclusion as the Monopolies and Mergers Commission. 
 I strongly resist the hon. Gentleman's suggestion that the historic form of words in subsection (2A) should be removed and that we should instead retain the plurality test in subsection (2B). One reason for maintaining the form of words was to achieve continuity between the old and new, the advantage being that businesses would have the certainty that they could rely on the existing body of precedent when contemplating future mergers.

Andrew Lansley: I would not want the Minister to engage in too much speculation on any individual case. However, would he agree with me and with my hon. Friend the Member for Maldon and East Chelmsford that subsection (2A) should not necessarily be removed, but that it would be interesting to consider how it would be applied?
 Would the Minister agree that there is a substantial difference between the proposed new regime and the old? Under the old regime, those who were not already newspaper proprietors were not liable to be caught by the special newspaper merger regime. Let us consider, without discussing the merits of the case, what might have happened if the Government, or Ministers, had chosen not to apply a wider public interest test in relation to Mr. Desmond's acquisition of Express Newspapers. If a case akin to Mr. Sullivan's were to occur in future and the ''Mr. Sullivan'' in question were not a newspaper proprietor, he would be caught. Indeed, it has been demonstrated that in the recent past he would not have been caught.

Stephen Timms: The hon. Gentleman is absolutely right. From the point of view of the newspaper industry that is one of the benefits of the new regime. The industry has felt rather disadvantaged compared with people coming in from outside and in that respect the provision is a helpful development.
 I did not get the sense from what the hon. Member for Maldon and East Chelmsford said that it was as the hon. Gentleman had suggested. I thought that the hon. Gentleman was concerned about references to the accurate presentation of news and free expression of opinion on the grounds that that would open the door to undesirable influence over the press. If that was not the case, I will gladly give way.

John Whittingdale: The Minister is not quite reflecting what I said. I was not suggesting that we should do away with subsection (2A) and keep subsection (2B). If that had been my view, we would have tabled an amendment to do that. I was suggesting that when we allow politicians to begin to make judgments on certain questions, such as whether or not the presentation of news is accurate, that inevitably leads to subjective judgments. There is a danger that politics can creep in. I fully accept that the wording has existed for a long time, but that does not mean that the danger is not there. It therefore becomes all the more important that we build in safeguards. That is a precursor to the debate that we will have about the involvement of Ofcom and others when reaching decisions.

Stephen Timms: I am grateful to the hon. Gentleman for that clarification. It is helpful that he made it clear that he is content for subsection (2A) to remain in the Bill because we can all agree about that. Perhaps I should sit down now because that would be a helpful conclusion to our debate.
 The hon. Gentleman said that the criteria have been in legislation for 30 years. The Committee would want to know the grounds for any proposed change. Most people will take the view that a regime based mainly on those two criteria, but also on a wider test, has worked well and will look forward to it doing so in the future. 
 Question put and agreed to. 
 Clause 361 ordered to stand part of the Bill.

Clause 362 - Adaptation of role of OFT in initial investigations and reports

Andrew Robathan: I beg to move amendment No. 261, in
clause 362, page 311, line 23, leave out from '(2B)' to end of line 25.
 The amendment is fairly straightforward. I want the Minister to explain the thinking behind the change that clause 362 would make to section 44 of the Enterprise Act 2002. Clause 362(3) says: 
'' 'newspaper public interest consideration' means any consideration which . . . in the opinion of the Secretary of State, is concerned with newspapers and ought to be specified in section 58''
 My amendment would remove that wide-ranging, draconian power. 
 Section 44 of the Enterprise Act provides for an Office of Fair Trading report when the Secretary of State has issued a public interest intervention notice on a merger. If the merger is a newspaper merger, the OFT's functions are to be carried out by Ofcom. New subsection (8) says that ''newspaper public interest consideration'' shall be the considerations 
''specified in section 58(2A) or (2B)''.
 They are the considerations of accurate presentation of news, free expression of opinion and plurality of views. Additionally, new subsection (8) says that a ''newspaper public interest consideration'' may be a consideration that 
''in the opinion of the Secretary of State, is concerned with newspapers and ought to be specified in section 58.''
 That mirrors the provision in section 42(3) of the Enterprise Act, which states: 
''a public interest consideration . . . is specified in section 58 or . . . in the opinion of the Secretary of State, ought to be so specified.''
 That wide power seems acceptable in the context of the national interest, which is presumably what it is supposed to cater for, except when considering a newspaper case. However, the power to turn an ordinary commercial merger into a public interest case, which could be prohibited although there were no competition issues, without any consideration of public interest and without amendment to section 58, seems alarmingly wide, and I hope that the Minister will justify it. If the consideration had to be in section 58, I understand that any new consideration would have to be scrutinised by Parliament. However, the new power could be exercised to stop a merger without anything coming before Parliament. 
 It is also objectionable that the extension is not linked to the public interest, as the section 42(3) model is. The Secretary of State has only to think that there is a consideration linked to newspapers before we are suddenly in section 58 territory where competition is irrelevant and whatever the Secretary of State says goes. If that is wrong, I hope that the Minister will give us an explanation. I am not entirely clear about whether advice for the Secretary of State will come from the OFT or Ofcom. Which would be better in such a case? 
 If the provision remains in the Bill, newspaper companies will have no means of knowing whether a proposed merger should be looked at in the light of the known factors in the Enterprise Act because it will happen after the Bill has been passed into law or in the light of unknown factors that will not come out until the merger process is some way advanced. That is an unfair burden to put on commercial companies, and I ask the Government to explain what is intended, and why it is thought necessary to have such a wide power for newspaper mergers. Unless the Government come up with a good explanation and can prove that the draconian powers are needed, they should withdraw new clause 44(8)(b).

John Whittingdale: I agree with my hon. Friend. First, new subsection (8) says that ''newspaper public interest consideration'' is anything that has been specified in the Bill, and then, in new paragraph (b),
 it says that it is also anything that is not specified in the Bill but should be. It seems that we are leaving the gate open.
 That brings me on to events that have already been mentioned, both by the Minister and by my hon. Friend the Member for South Cambridgeshire. We need to review some of the decisions made recently under existing legislation, and consider how those decisions might have been made if this new legislation had been in place. There are two cases that we should consider. The first, which was mentioned by my hon. Friend, is the proposed acquisition of the Bristol Evening Post in 1990 by Mr. David Sullivan. It was thought that the acquisition might act against the public interest and, under the existing wording, the need for the ''accurate presentation of news'' and the ''free expression of opinion''. The Minister rightly points out that that wording has been in place for some time. 
 The Monopolies and Mergers Commission report said: 
''Were someone of Mr. Sullivan's business background and interests seen to have a significant influence in their affairs''—
 that is, the affairs of the Bristol Evening Post and the Western Daily Press— 
''their reputation could well be seen as compromised, particularly where the reporting of events with sexual aspects was involved. Were he to have acquired effective management control these effects could be expected to be more pronounced.''
 It is interesting that the commission mentions the reporting of events with sexual aspects; presumably that is a reference to the fact that Mr. Sullivan owns several other publications that some would describe as pornographic, and owned the Daily Sport and Sunday Sport. For that reason, the commission decided that the existing wording was applicable. However, I am not entirely sure why the fact that he owned pornographic magazines meant that his newspaper could not accurately present news. 
 Secondly, we should consider the recent acquisition of the Daily Express by Mr. Richard Desmond. In that case, the matter was considered by the Secretary of State. After some deliberation, the Secretary of State decided that the acquisition did not raise any concerns for the reason that my hon. Friend the Member for Blaby (Mr. Robathan) gave; Mr. Desmond did not then own any newspapers. I shall not elaborate at great length on the matter, but Mr. Desmond, as is fairly well known, is the proprietor of such magazines as Horny Housewives, Mega Boobs, and Asian Babes. 
 Mr. Desmond is a successful businessman, and I have no difficulty with the fact that he is the proprietor of those magazines. Personally, I did not think that there was any reason why that should have prevented him from owning the Daily Express. Certainly, he has not turned it into an extension of Mega Boobs. However, the acquisition caused quite a lot of controversy, not among Opposition Members, but among Labour Members, many of whom felt that Mr. Desmond's proprietorship of such magazines should disqualify him from acquiring the Daily Express. I remember that there was an early-day motion on the subject, and several hon. Members continue to be of that opinion. At the time, there was the complicating 
 factor of Mr. Desmond's connection with the Government. It was perhaps unfortunate that, almost exactly at the same time as Mr. Desmond's potential acquisition was being considered, he decided to give a significant financial donation to the Labour party. I am not suggesting that the Secretary of State's decision to allow the acquisition was influenced by the fact that £100,000 was given to the Labour party eight days later, but the waters are murky so we need to be careful. 
 The provision is entirely open ended. It means that the Secretary of State can decide that the fact that a person who is about to acquire a national newspaper may have other commercial interests that some people would regard as undesirable was a public interest criterion that should be specified under section 58(2A) and give him the power to intervene. When we debated the Enterprise Bill, we knew that the Government intended to make changes to the special newspaper regime, although we had not seen the details because they have only become apparent in the Communications Bill. At the time, we expressed concern that the public interest criteria were ill-defined, especially the provision that allows the Government to decide what they want to be in the public interest, which will give them grounds for intervention. 
 It is important that the Minister justifies why he considers it necessary to have such an open-ended power. Will he explain what sort of public interest issue might arise, which is not specified under section 58(2A) or (2B), but which the Secretary of State may decide later should have been specified in those provisions?

Andrew Lansley: I had not intended to say much about the matter, but the manner in which subsection (3) has been drafted to insert the definition of ''newspaper public interest consideration'' is slightly perplexing. What will be gained by it? Under section 42(3) of the Enterprise Act, if the Secretary of State wishes to make a special public interest intervention notice in relation to a matter that is not specified under section 58 of the Act, the Secretary of State can do so and then has 24 weeks within which to finalise the public interest consideration under section 58. If my recollection is right, under section 53, a reference under section 45 would not be able to proceed to the commission. The commission would not be able to consider it. In so far as the provision under section 42, which refers to a consideration
''not so specified but, in the opinion of the Secretary of State, ought to be so specified''
 will be repeated under proposed section 44(7) of the Enterprise Act by virtue of the clause, it is duplication. 
 I am not sure what benefit will be derived from requiring that any public interest intervention or consideration that is specified by the Secretary of State, which is outwith those that are to be specified under the Bill, but related to newspapers, should necessarily to be treated as a newspaper public interest consideration. The subsequent consideration of them will not necessarily be any different. It does not automatically follow that, because something relates to newspapers and a public interest arises about it, it 
 should necessarily be considered against the same criteria as those under clause 361. There may be a different reason, just as, for example, newspaper merger considerations could arise in relation to national security implications. That consideration is also specified in section 58, but if it relates to newspapers, it has to be considered under the criteria of clause 361. Are the factors in clause 361 not necessarily applied to every newspaper public interest consideration? If a new consideration was specified as a result of the insertion into section 44(7), surely the Secretary of State would have to specify what that was, with its own factors? In which case, we are right back to section 42 and exactly the same process. 
 On the face of it, the provision is duplicatory and is not required. The amendment tabled by my hon. Friend the Member for Blaby seems satisfactory in that respect.

Stephen Timms: The clause is mainly about ensuring consistency with the Enterprise Act regime that Parliament has already agreed. The hon. Member for Blaby asked me the purpose behind the clause. Section 58(3) of the Enterprise Act sets out a mechanism by which the Secretary of State can, by order, add, remove or amend public interest considerations from the merger control regime. The hon. Gentleman expressed concern that the Secretary of State could do that without any further reference to Parliament. I can give him a helpful reassurance about that. Such an order would require parliamentary approval with an affirmative resolution by both Houses of Parliament. Therefore, if there were to be an addition, there would need to be explicit parliamentary approval for it.
 If Parliament did not give its approval, then as the hon. Member for South Cambridgeshire said, there are restrictions under section 53 of the Enterprise Act that set out how the Competition Commission should cancel the reference. There would need to be approval. 
 As the provisions will integrate newspaper mergers into the Enterprise Act's general merger regime, the power could be used to either vary or remove the newspaper public interest considerations set out in clause 361. That is a further point of which the Committee needs to take note. It is not only about the possibility of adding in a further consideration, but it also allows the removal of matters under clause 361. The provision could be used to add further public interest considerations relating to newspapers; it could be used to add a newspaper public interest consideration while a particular case is under investigation by the regulatory authorities, again to achieve consistency with the Enterprise Act. 
 The Enterprise Act provisions will allow the Secretary of State to review the scope of the newspaper public interest considerations and any other specified in the Act, in light of experience of their operation and following one of the key principles behind the Bill, the power is designed to future-proof the legislation against developments in the newspaper market, which might make the current public interest considerations inappropriate. The powers are certainly appropriate in a merger control regime where we are 
 moving from a general test of the public interest to a deliberately limited one about the substantial lessening of competition. We cannot predict what public interest issues might arise in future merger cases, whether relating to newspapers or not, but we would wish to be consistent with the Enterprise Act mechanisms already agreed for dealing with such events.

Andrew Lansley: I am grateful to the Minister for giving way. I do not follow his reference to the clause enabling newspaper public interest considerations to be removed. As I understand it, they do not happen here, but by virtue of the order-making power under section 58 of the Enterprise Act. Is that correct?

Stephen Timms: I am not sure what the hon. Gentleman means by ''they''. The hon. Gentleman's point is correct, but subsection (3) allows those variations to occur.
 We want to align the newspaper provisions in the Enterprise Act's public interest regime with those of the Enterprise Act's special public interest regime. Like the public interest regime, the Enterprise Act's special public interest regime does not provide for any new public interest considerations to be added during the course of a merger investigation and we believe that we should have that ability. 
 If the amendment were accepted, the provisions in the clauses would continue to apply to any merger that raised a public interest consideration as set out in new subsection (2A) and (2B) to be inserted in section 58(2), but not to any new public interest consideration added by the Secretary of State during a merger investigation. I am sure that the Committee will agree that that outcome makes no sense. 
 The hon. Member for Maldon and East Chelmsford asked about Richard Desmond and Express Newspapers and the blocking of David Sullivan's acquisition of the Bristol Evening Post. His question was answered in part by the hon. Member for Blaby who pointed out that, because he was an existing United Kingdom newspaper proprietor, David Sullivan's acquisition of the Bristol Evening Post fell within the special newspaper merger regime. Therefore, the acquisition required mandatory reference to the Competition Commission. 
 The acquisition by Northern and Shell of the Express titles did not fall under the regime because it was not an existing newspaper proprietor. It was considered instead under the general merger provisions of the Fair Trading Act. I assure the hon. Member for Maldon and East Chelmsford that the merger clearance was dealt with 100 per cent. by the book on the basis of independent advice from the director-general of fair trading. That should reassure the hon. Gentleman. 
 As I said, any such change would be subject to parliamentary scrutiny, which, if the hon. Gentleman checks paragraphs 8 to 26 of schedule 16 of the Bill, is ensured by reference to section 124 of the Enterprise Act.

Andrew Lansley: I am afraid that, on this occasion, the Minister has not responded accurately and fully to the points that my hon. Friends and I have made. Clause 362 gives the Secretary of State power to add public newspaper considerations, but does not give him the power to remove them. The power to remove them is by virtue of the order making power in section 58 of the Enterprise Act.
 The Minister said that the amendment would prevent additional newspaper public interest considerations being considered under the special public interest regime for certain newspaper mergers. However, it does not do that. Clause 364 deals with varying the criteria for what constitutes part of the merger control regime and refers to such issues as the size, market share, and share of supply of newspapers. It has nothing to do with the specific public interest consideration in question. 
 If the amendment were passed and an additional ''newspaper public interest consideration'' was not specifically brought forward but such matters were simply dealt with in the normal way as a separate specified public interest consideration under section 58, it would not be capable of being the subject of investigation and report by Ofcom. Ofcom can only make investigations and reports under what will be new section 44A, which relates to newspaper public interest considerations. That is the difference. 
 My hon. Friend must decide whether to press the amendment to a Division, but it seems to me that it does not do the damage that the Minister says that it does. It has a different effect, which many in the newspaper industry would not regard as damaging.

Andrew Robathan: I am grateful to my hon. Friend, who brings considerable knowledge to the debate.
 I have not studied in detail the paragraphs in schedule 16 that the Minister referred to, but I will take his remarks at face value. He is always courteous and straightforward with the Committee, so it is difficult not to do what he wants. When he asks me to withdraw an amendment, I always feel like a bit of a heel if I am not prepared to say, ''As he has asked me so nicely, of course I will withdraw it.'' 
 The Minister made a very good point: he has put it on the record that this will be subject to public scrutiny, which is very important. However, the additional comments of my hon. Friend the Member for South Cambridgeshire prove that there is—to put it mildly—some confusion. On the one hand we have heard that the clause has duplicated what is in the Enterprise Act, but on the other hand we have been told that that is not the case and that the clause is necessary. Either it is necessary or it is not. 
 There is confusion. For that reason—and because of the pertinent points that were made by my hon. Friends the Members for South Cambridgeshire and for Maldon and East Chelmsford—I will press the amendment to a Division. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 14.

Question accordingly negatived.

John Whittingdale: I beg to move amendment No. 587, in
clause 362, page 311, line 26, leave out from 'daily' to 'newspaper' in line 27 and insert 'or Sunday'.

Peter Atkinson: With this it will be convenient to discuss the following:
 Amendment No. 588, in 
clause 362, page 311, line 28, after 'a', insert 'substantial'.
 Amendment No. 262, in 
clause 362, page 311, leave out line 29 and insert— 
 '(10) Paragraph 3(2) and (3) of Schedule 14 of the Communications Act 2003 shall apply in relation to subsection (9) as they apply in relation to paragraph 3(1) of that Schedule but with the substitution for the references to OFCOM of references to the Secretary of State.'.
 Amendment No. 24, in 
clause 364, page 312, line 41, at end insert— 
 '(3CC) The condition in subsection (3C) will not be satisfied if, in relation to the supply of newspapers of any description considered, the total circulation of those newspapers does not exceed 50,000 on a daily or a weekly basis as appropriate.'.
 New clause 22—Free of charge newspapers— 
No. NC22, to move the following Clause:— 
 'In section 129 of the Enterprise Act 2002 (other interpretation provisions) after subsection (4) there shall be inserted— 
 ''(5) For the purposes of determining any market share of a newspaper by reference to the number of copies sold in any market, copies of a newspaper which is distributed free of charge (rather than sold) which are distributed in that market shall be taken into account as if they had been sold.''.'.

John Whittingdale: This group of amendments covers several issues, a couple of which are relatively minor in comparison with the main issue, which is whether the regime should extend to smaller and locally based newspapers. Before I turn to that major concern, I shall mention the two amendments in this group that address different matters.
 Amendment No. 262 removes proposed new subsection (10) because it would allow the Secretary of State to amend the definition of a newspaper. The Minister has laid great stress on the need to ensure that the Bill fits in with the provisions that have been enacted under the Enterprise Act. Amendment No. 262 would specify a consistent definition of what is a newspaper and it would, therefore, apply the definition that is already available in the Bill. We are concerned that the Bill would give the Government a fairly wide power to change the definition as it sees fit and we 
 think that it goes too far. As the Government have specified a definition of a newspaper in respect of the merger provisions of the Bill and the Enterprise Act, we feel that it would be more consistent if that definition were applied to the clause. 
 A separate issue, which is covered by new clause 22, concerns what is a newspaper market in relation to ascertaining the market share of a newspaper. At the moment, the newspaper market is calculated in terms of the number of copies sold, but for some time now that market has been a much larger entity. The number of free newspapers is growing and those can have a considerable influence. In London, for example, the free newspaper Metro is distributed at every underground station. That is a successful enterprise and it is, I suspect, influential. For a market share to be ascertained without a recognition that free newspapers exist would be curious, to say the least.

Andrew Robathan: On that point, would my hon. Friend agree that we have grown up with the idea of free newspapers filled with advertisements being delivered locally to the community? Actually, as I travel on the underground in the morning, like millions of people do every day—I do not have the correct figure to hand—I notice that Metro is the newspaper that is read the most on underground trains.

John Whittingdale: I do not know if it is the most read; it is certainly the most freely distributed across the floor.

Andrew Robathan: It hides most faces.

John Whittingdale: My hon. Friend is right. There is no question that that free newspaper is successful in London. However, that situation does not just apply to London. In my constituency there are a variety of free newspapers, in particular, the Yellow Advertiser, which is ubiquitous around the country. There are also a number of other free papers, some of which are specifically concerned with job opportunities, car sales and so on. However, on examining a newspaper market and assessing whether a newspaper would have a dominant position as a result of a merger or acquisition, it should be recognised and taken into account that that free newspapers might be an important element.

Mark Hoban: My hon. Friend refers to the power of free newspapers. We should remember that Metro was published by Associated Newspapers as a way of protecting themselves from a Swedish competitor, which was about to launch a free newspaper in London that would have directly affected the Evening Standard and its advertising revenues. Metro is, in a sense, a spoiler that was intended to protect the Evening Standard. That demonstrates the power of free newspapers and the importance of the market.

John Whittingdale: Metro is owned by Associated Newspapers and my hon. Friend's explanation of why the group felt that it was necessary to launch it is right. That was a successful tactic, but whatever the
 motivation of Associated Newspapers, Metro is now an influential and important part of the London newspaper market.
 In moving new clause 22, we have sought to use the words that are contained in paragraph 3(8) of schedule 14, which ensure that free newspapers are counted for the purposes for determining the market share of a paid-for paper in relation to the cross-media ownership provisions. It is curious that market share should be determined in one way in relation to those provisions and in another way in respect of merger provisions. Again, in order to obtain a little consistency, we hope that the Minister will recognise the force of the argument for incorporating that aspect of the market when examining this clause. 
 After speaking briefly to amendment No. 262 and new clause 22, which are separate matters, I turn to the largest issue raised by the amendments: provisions relating to local newspapers and, especially, weekly newspapers and newspapers with a reasonably small circulation. There are strong arguments in favour of removing smaller local papers from the special newspaper regime. 
 Historically, the Competition Commission has not found that the acquisition of a purely local newspaper would be against the public interest on grounds of freedom of expression. It can be argued that commercial pressures ensure that the editorial content of local papers is driven by the interests of local readers and by such papers' customers. The general competition provisions will always apply, and our approach on many of these clauses is to question whether it is necessary to have an onerous regime in addition to the existing regime applied through competition legislation. It is our view—and not only ours—that it is inappropriate for the regime that is designed to cover large national dailies and influential newspapers to be applied to small local papers. 
 The Newspaper Society has argued that the Bill's jurisdictional tests will extend discretionary scrutiny. The society's president said that the Bill is not deregulatory because the new tests will allow 
''Ministerial interference in transactions exempt from the special newspaper regime and which hitherto have not raised any freedom of expression and public interest concerns. In practice, the new regime will become a more rigorous version of the old. This would maintain the very restraints upon the regional and local press and unnecessary regulatory burdens that the Bill is intended to lift. It would also increase uncertainty as to the regulatory outcome of any newspaper merger, substantially undermining the value of the removal of prior consent''—
 an aspect of the Bill that we support. 
 Amendments Nos. 587 and 588 would remove small local weekly newspapers and newspapers that do not have a significant circulation in a part of the country from the provisions. That has been widely supported by a huge variety of newspapers throughout the country. I shall not read out every letter that I received on the subject, but I heard from the group editor of the Eastbourne Herald and Gazette series, the editor in chief of the Ackrill media group, which is based in Harrogate, the deputy editor of the Yorkshire Post and the editor of the Yorkshire Evening Post. 
 The editor of the Yorkshire Evening Post said that continuing the paper's proud tradition requires 
''the company for which I work to continue making money so I can continue my argument for a sizeable share to enable my team to their job. Put simply . . . editorial quality, independence and integrity relies on parent companies being allowed to grow either through investment but more likely through acquisition.''
 Several local newspapers fear that the imposition of the additional regulatory requirement might be an impediment to much-needed investment in local newspapers.

Stephen Timms: One of the difficulties with amendment No. 588 is that it is not clear what constitutes a ''substantial'' part of the United Kingdom. Is he suggesting, by reading out that letter, that Yorkshire would not count as a substantial part of the United Kingdom? I would have thought that it would, by any definition. It would assist us if he could give more clarity on what he means by ''substantial''.

John Whittingdale: There are different ways of addressing the matter; some have suggested that it could be done through circulation, and some by turnover.

Andrew Lansley: Presumably the Minister knew what was meant by ''a substantial'' part when he put the phrase into new subsection (3D) under clause 364(2), which we shall come to later. The Minister should know the answer to his question, because in a footnote on page 389 of the Department's evidence to the Joint Committee, it says:
''In the context of the FTA the meaning of 'a substantial part of the UK' has been clarified by caselaw as meaning the part must be of 'such a size, character and importance as to make it worthy of consideration for the purposes of the Act.'''
 In its evidence to the Joint Committee, the Newspaper Society suggested that Yorkshire could, for those purposes, be considered a substantial part of the United Kingdom. Unfortunately, so too could a city as small as Cambridge. However, the amendment would at least distinguish the phrase from ''part'', which could be very small.

John Whittingdale: Once again, I am hugely relieved and grateful that my hon. Friend is on the Committee. I thank him for his helpful point. He, too, has tabled an amendment that is designed to address the issue, and I hope that he will say a few words on it. Whether or not the Yorkshire Evening Post would be caught under the provisions is a matter to be determined, but I do not cite it in particular. It is just one of many local newspapers—most of which could not, under any terms, be described as circulating in a substantial part of the United Kingdom—that have expressed considerable concern on that point. I will not quote any more of them, but they include the Bury Free Press, Portsmouth Publishing & Printing Ltd., and the Mid Sussex Times. There is a long list. The Government should at least pay attention to those concerns, which are genuinely felt by many newspapers that do not have an easy time, and that have real fears the provision will introduce a more burdensome regime.
 I shall quote the director of the Newspaper Society. My hon. Friend the Member for South Cambridgeshire is right to say that the society gave 
 evidence to the Joint Committee, but the director points out that he only received the draft policy memorandum on the newspaper transfer regime—without any clauses attached—the evening before he was required to give that evidence. We should, perhaps, rather take into account the views that he has expressed since then. The director argues strongly that 
''a complex and uncertain regime would make matters worse. Contrary to the Government's assurances, these proposals would not simplify and streamline the newspaper ownership controls nor remove small newspaper transactions from the special regime as promised.
The new regime would enhance, not increase, the discretionary power of the Government.''
 The director argues, as have many, that the newspaper industry would have no objection to the application of the competition tests under the Enterprise Act 2002 
''if they simply triggered the general regime shared by all other industries.''
 Many think that the special newspaper regime relating to the smaller newspapers is unnecessary and unfair. I therefore ask the Minister to consider whether we should apply the full weight of the tests to small, locally based newspapers, when there are no real concerns about freedom of expression, and no other considerations. There is a real danger that the powers may increase the burdens on those papers, and make life more difficult for them.

Andrew Lansley: I am grateful for the opportunity to add a little to my hon. Friend's remarks. At paragraph 279 of its report, the Joint Committee stated:
''We would wish the Government to have full regard to the need for a substantial deregulatory outcome for the newspaper industry, especially as regards local newspapers.''
 It should be deregulatory not only in relation to local newspapers, but on a wider basis. The Minister takes the same view. He was quoted as having said on 13 June last year that the Communications Bill promised a less burdensome regime for newspapers and would remove the smallest local newspapers from regulation altogether. 
 If the regime is to be deregulatory in its effect compared with the existing regime, it must do more than simply take the smallest local newspapers out of the special merger control regime. In effect, they can be outside the regime now if they have a circulation of below 50,000. Under section 58(4) of the Fair Trading Act, it used to be 25,000. 
 How do we achieve a substantial deregulatory outcome? Under the Bill, as drafted, the outcome would not necessarily be deregulatory. It would be deregulatory only if, in practice, Ministers were to invoke the intervention notice on few occasions. The scope of the special public interest regime under clause 364 and the definitions under clause 362 could bite substantially on local newspapers. As was illustrated by the exchange about the meaning of a substantial part of the United Kingdom, if it remains simply a part of the United Kingdom under the new subsection (9) of section 44 of the Enterprise Act, cities the size of Cambridge and considerably smaller areas than that could be covered. 
 I am talking not only about local newspapers, but about local weekly newspapers. Back in the 1960s, the regime excluded weekly periodicals, but included local weekly newspapers. That perversity under the current system has existed for the best part of 40 years and is strange to justify it on competition grounds. We know not least because the Government have reminded us so in the policy document that was issued last year that, in practice, on competition grounds, local merger have had no references that have been refused on grounds of competition alone. As for other public interest aspects, we have talked about the Sullivan case, but there are few such cases. The case of the Bristol Evening Post concerned a larger regional newspaper, not a smaller one. 
 From experience, evidence suggests that the mischief that could result from moving to a seriously deregulatory approach would be minimal. How would we go about it? Some amendments have different ways in which to achieve such a result. The lead amendment tabled in the name of my hon. Friend the Member for Maldon and East Chelmsford would redefine the newspaper for such purposes as a daily or Sunday newspaper. It would remove the anomaly of when local newspapers, including weekly newspapers, are brought back into the special merger regime where weekly periodicals on a national basis are omitted, even though they are newspapers for other purposes. Daily regional or local newspapers will still be included in the regime. In my area, the Cambridge Evening News is a daily paper. The fact that we removed ''local'' from the definition does not mean that it would not continue to be part of the definition, so it would be in. The second amendment, No. 588, would insert the word ''substantial''. 
 We have discussed what ''substantial'' means or may be interpreted as meaning for such purposes. It is at least an improvement on no qualification of part of the United Kingdom. Case law suggests that Cambridge—using my constituency as an illustration—is a substantial part of the United Kingdom, so the Cambridge Evening News would not be out on those grounds. I could not be accused of pursuing a closely self-interested approach to the matter, but many other local newspapers throughout the country, including some dailies, would be excluded. 
 Amendment No. 24 relates to circulation. I think that I am on my own for those purposes.

Mark Hoban: No.

Andrew Lansley: Perhaps I shall win round Committee members. The Government have moved away from circulation. If we want to exclude a significant part of the local newspaper industry from the scope of the special merger regime, probably the only way to do it is by reference to circulation—the way in which the past regime has operated. The Government are proposing to get away from circulation in pursuit of consistency with the merger regime under the Enterprise Act, but the de minimis threshold in the
 Act—at £45 million or whatever—has absolutely no bearing on local newspapers; most of which would be way outside it.
 The moment that we use other definitions of share of supply or share of market, we would bring back into scope some small local markets. There is continuing merit in using a circulation criterion as a basis for establishing a de minimis threshold. I do not pretend that amendment No. 24 is sufficient in itself; we would need to reincorporate some of the circulation definitions that are currently in the Fair Trading Act. Given that we are pursuing the amendment of my hon. Friend the Member for Maldon and East Chelmsford and raising amendment No. 24 tangentially, I shall not worry too much about that. 
 If the Government were persuaded to change their mind, they would have to do the necessary drafting. The definition of circulation is not inherently difficult because it has been applied over many years. Even with the inclusion of free circulations now, it is still not that difficult to achieve. 
 We are using the figure of 50,000 because of the current application of a mandatory reference to circulation at the 50,000 mark. What does it mean for regional publications? For those purposes, the Cambridge Evening News would be included above 50,000, although my list—it is for 2001, so it is probably a little out of date—consists of regional titles, with a circulation of more than 50,000. The Yorkshire Evening Post might have been excluded, if we had gone for a circulation of more than 100,000. However, in 2001 its circulation was cited as 99,199, so the Yorkshire Evening Post is well within the limit, as indeed are a lot of local newspapers. 
 The Derby Evening Telegraph, and the South Wales Evening Post for example, are above the line.

Mark Hoban: What about the Portsmouth Evening Post?

Andrew Lansley: The Portsmouth Evening Post is below the 50,000 mark, if that is of any help to my hon. Friend. I am encouraging him in the direction of amendment No. 24. We are referring to newspapers below the threshold of 50,000, which generally operate in a relatively local market. The need for a special merger control regime in relation to those newspapers has not been demonstrated in the past and should not be pursued now.
 In terms of the practical changes to the legislation to achieve a deregulatory outcome, the Government must consider accepting some of these amendments—I think that they should accept them all. They should accept amendment No. 587 to remove the anomaly, and amendment No. 588 although it would probably have a limited benefit in practical terms. However, to achieve the deregulatory outcome that the Joint Committee sought and the Government promised the newspaper industry, it is necessary to go further and to think about re-introducing a circulation limit as a de minimis threshold, rather than introducing the ones that we will discuss in relation to clause 364.

Andrew Robathan: I will not detain the Committee for long, but I wish to support my hon. Friend the Member for South Cambridgeshire.
 This discussion addresses one of the main intentions of the Bill. We were told at length about how this Bill is meant to be deregulatory. With regard to newspaper mergers, I make no apology for quoting in full what my hon. Friend has already quoted. On 13 June, the Minister said: 
''For newspaper transfers we will bring in a streamlined and less burdensome regime, that focuses regulatory action on those newspaper transfers that appear to raise competition or plurality concerns. We shall remove the smallest local newspapers from regulation altogether.''
 Paragraph 9.7.2 of the policy of the draft Communications Bill of May 2002 states: 
''De minimis provisions will remove the smallest local newspapers from regulation altogether.''
 We all applaud the intentions of being deregulatory, streamlining, making life easier and getting the Government's nose out of places where it should not be, but they have not been fulfilled. My hon. Friend has drawn attention to the fact that the Joint Committee's recommendations are not being effectively followed: the proposed regime is more restrictive than the present one. 
 Local newspapers have been referred to, and I have been contacted by the editor of the Harborough Mail and the Lutterworth Mail.—[Interruption.] The Committee might wish to know that the House of Lords wishes to remain appointed, as we thought it would. 
 The Harborough Mail is a very small newspaper, and it has an offshoot, the Lutterworth Mail in my constituency, which has a circulation of 6,000. Can it really be in the national interest to have it covered by the Bill? I ask the Minister to fulfil the intentions that he stated in June. The Newham Recorder serves his constituency: I am sure that it would also wish to be outside the coverage of the Bill. It is ludicrous even to consider having small newspapers covered by the Bill when everybody—and in particular the Minister and the Government—has said that they want it to be deregulatory and to exclude small newspapers.

Stephen Timms: The key issue concerning these amendments and this clause is the one that I drew to the Committee's attention this morning. To focus specifically on local newspapers, the crucial question is whether public interest considerations should be taken into account when local newspaper mergers are examined? If one takes the view that they should be taken into account for local newspapers—as we argued for national newspapers, and the Committee accepted—what is in the Bill follows logically from that. I will explain that: it is the central issue of these amendments.
 There is a view that we should not take public interest considerations into account with regard to local newspapers, and that they should be outside the regime altogether. The Government's view is that we should apply public interest considerations to them.

Andrew Lansley: Can the Minister explain why a national newspaper that is published on a weekly
 basis but not on a Sunday would not be part of the special newspaper merger control regime, but a weekly newspaper that is published locally but not on a Sunday would be?

Stephen Timms: That was the explicit view of Parliament in 1965, and I think that it was right, because local weekly newspapers—Committee members will be familiar with many of them—are influential in their local areas in a way that national weekly publications, other than Sunday newspapers, are not. I accept the hon. Gentleman's point that it is a rather odd formulation. However, when one reflects on the role that the publications in question play in our communities, one can understand why it was good sense for Parliament in 1965 to insist on including local weekly newspapers in the regime.

John Whittingdale: My hon. Friend has struck us dumb. It is extraordinary that we should be applying the full rigour of the tests to small weekly local newspapers but not to national weekly newspapers. It might be said that national weekly newspapers, apart from the Sundays, are not influential. However, let us consider the The Economist; I do not know whether it meets the definition of a newspaper, but many would regard it as such. No one could conceivably argue that The Economist is not a highly influential weekly publication that deals with the events of the day. Most people would regard such a publication as a newspaper.

Stephen Timms: The essential point in considering the amendments is whether the regime should be applied to local newspapers, which are typically weekly publications. There are, of course, examples of local daily newspapers, but most hon. Members read weekly local newspapers and the question is whether the influence of those is such that they should qualify for the public interest regime. In 1965, Parliament took the view, specifically and explicitly, that they would and that was right—the influence of those publications is such that they should be included.
Several hon. Members rose—

Stephen Timms: I have a choice of interventions.

Andrew Lansley: An embarrassment of interruptions.
 Let us say, for the sake of argument, that Parliament had a legitimate concern in 1965. We may, however, reconsider that in the light of experience. Since 1979, nine reports relating to newspaper mergers have led to adverse findings. To what extent have adverse reports from the Monopolies and Mergers Commission or the Competition Commission—especially the nine that led to adverse findings—demonstrated any substantive concern about mergers affecting weekly local newspapers?

Stephen Timms: There are examples where that has occurred; for example, in respect of one or two of the cases that we have already considered. It is true that in respect of those cases public detriment concerns were raised about publications other than weekly newspapers, but in the reports that have been produced on a couple of those mergers—I think that the Bristol Evening Post was one of those and I shall check that—[Interruption.]

Andrew Lansley: It is a daily newspaper.

Stephen Timms: We are talking about organisations that publish various publications, including weekly newspapers. The reports—[Interruption.] I will check to see if that is the case and if it is not I will set it right.
 There have been cases in which public detriment concerns have been raised in respect of an organisation that produced a daily paper. It all comes back to the central point on which the Committee must take a view, which is whether it is right that there should be public interest considerations in local newspaper mergers and whether the view that Parliament took in 1965 is still appropriate today. I think that it is. The influence of the publications in question means that they must be subject to a public interest regime. 
 I will qualify the comments that I made in June last year, but the essential principle on which the Committee needs to take a clear view is whether the influence and significance of local newspaper is such that they should be subject to a public interest regime. I believe that they should.

Andrew Robathan: I look forward to having the argument set out clearly, because I do not believe that it has been. This morning we have been discussing how the world has changed. People used to take all their information from newspapers—local or otherwise. Now, they take much more information from other media, especially television. The world was different 38 years ago, when the Minister and I were probably still in short trousers. He cannot keep relying on the decisions of Parliament in 1965 as if they were somehow sacrosanct.

Stephen Timms: Indeed, but is the hon. Gentleman saying that there should be no regime for local newspapers? If that is the Opposition's point of view, it would be helpful if it were clearly expressed—then we would know where we all stood.

Andrew Robathan: The Minister is not an unintelligent person. He can read the amendments. They bolster what the Government stated was their policy. As the Minister said, ''We shall remove the smallest local newspapers from regulation altogether.'' My hon. Friend the Member for South Cambridgeshire is suggesting that a circulation of 50,000 would be a good starting point.

Stephen Timms: Therefore, the hon. Member for Blaby accepts that there should be a public interest regime, albeit one that is amended in some way.

Andrew Robathan: It is a moot point.

Stephen Timms: The hon. Gentleman now says that it is a moot point, but it would help to have some clarification of the Opposition's position.

John Whittingdale: The amendments speak for themselves. We believe that weekly local papers and those with a small circulation should be covered by the existing competition regime, as are all other mergers and acquisitions. It is unnecessary to apply the full force of the special newspaper regime to them.

Stephen Timms: Yes, but is it necessary to apply any public interest regime to local weekly newspapers?

John Whittingdale: No.

Stephen Timms: Well, that is helpful. The hon. Gentleman says that there should be no public interest considerations in the case of local weekly newspapers. The view taken in 1965 was that such considerations are appropriate in the case of local weekly newspapers and I believe that that continues to be correct—not because a decision taken in 1965 must be true now, but because that decision continues to be correct. I hope to make progress in explaining why I believe that to be the case.
 The provisions are intended to protect an important public interest in the accurate presentation of the news, free expression of opinion and a plurality of views locally as well as nationally. That continues to be an important concern. Amendment No. 587 would delete references to local newspapers published other than on a daily or Sunday basis—the local weekly newspapers to which we have referred. The Bill as drafted mirrors the definition of newspapers set out in the Fair Trading Act 1973. That definition was derived from the Monopolies and Mergers Act 1965, so it carries more than 30 years of use and interpretation, covers daily and Sunday newspapers—whether local or national—and local periodicals, mainly the weekly publications. 
 The definition was drafted to ensure that only local periodicals were subject to the special newspaper merger regime, not national periodicals. Local weekly titles were included in the1965 Act at the explicit insistence of Parliament in recognition of the importance of the local press, because they were not initially included. We do not wish to extend the current regime to cover national periodicals, but the House was correct in 1965 and the grounds remain valid for recognising that local newspapers deserve particular protection. 
 The number of cases under the current special newspaper regime in which transfers of local newspapers that are circulated on a non-daily and non-Sunday basis have given rise to an adverse public interest finding justifies including such titles in the regime. I mentioned the Bristol Evening Post case, and it was right that the report referred to such concerns. A further example is the Daily Mail and General Trust plc and T Bailey Forman instance in 1994. Specified public interest issues can arise in respect of local newspaper mergers if they involve companies with significant turnover and/or share of supply. It is right for authorities to be able to investigate further if plurality concerns have been identified. 
 The jurisdictional tests proposed for newspaper mergers are the same as those that identify a deal as being sufficiently significant to come within the Enterprise Act merger regime. The only exception is that if there is an existing 25 per cent. share of supply of newspapers or of advertising in newspapers in a substantial part of the UK, plurality issues may be taken into account although there is no increase of the share of supply. That is because consolidation might not be directly relevant to plurality assessments. 
 The smallest newspapers will be taken out of the regime because the enterprise acquired will not have a 
 UK turnover in excess of £70 million or because the 25 per cent. supply threshold will not be reached in a substantial part of the UK. The treatment of local newspapers needs to be seen in the context of the reforms to the regime as a whole. In particular, the prior written consent of the Secretary of State on pain of criminal sanctions is no longer required.

Andrew Robathan: Will the Minister give way?

Stephen Timms: Let me finish this important point because it was missing from several comments made about the Bill's impact. The Bill is substantially deregulatory for two reasons. The prior written consent of the Secretary of State, which is required before a merger under the current regime, will no longer be required. There is no question of criminal sanctions under the new regime. That is a significant change to the environment in which the mergers will take place and delivers the deregulatory goal that I referred to and that the Puttnam committee asked for.

Andrew Robathan: What exactly did the Minister mean by a substantial part of the United Kingdom?

Stephen Timms: There are two respects in which a substantial part of the United Kingdom might be referred to. The meaning of the term is well understood and established in the Enterprise Act case. When the amendment adds the wording, it is not understood, and that would cause difficulties.
 The Bill's proposals deliver a substantial deregulatory outcome for the newspaper industry. The Secretary of State will have discretion to intervene on public interest grounds to ensure that future regulatory intervention will focus on transactions that raise plurality issues. However, the preservation of accurate presentation of news, free expression of opinion and plurality of views in the UK is of key importance. As a result, it should be possible to address plurality issues if they arise in the context of a transaction involving local newspapers.

Andrew Lansley: I am slightly perplexed by the Minister's assertion that local newspapers will receive a deregulatory benefit because of the removal of prior consent and criminal provisions. Under section 58 of the Fair Trading Act 1973, prior written consent is required in transfers involving newspapers with circulations of at least 500,000, and the transfer would be unlawful without the consent and would lead to criminal sanctions. I am not sure how the two deregulatory effects have any impact under the present regime on small newspaper transfers, so they do not really offer a deregulatory benefit to small newspapers.

Stephen Timms: They would certainly have a deregulatory impact on the newspaper industry, including those parts of the industry that produce local newspapers. I underline that point because it seems, from some of the submissions made by the newspaper industry, that it has not been accepted. I am glad that Conservative Members accept it, because it is important. I have already said that the very smallest newspapers will be taken out of the regime, as the regime will not affect an enterprise acquired that does not have a turnover in the UK in excess of £70 million or will not reach a 25 per cent. share of the
 supply threshold in a substantial part of the UK, so there are benefits, too.
 I should like to make some progress on the other points that have been raised. We have had an exchange about the use of the word ''substantial'', which would be inserted by amendment No. 588. The definition of ''newspaper'' used in the Bill mirrors the wording used under the current special newspaper merger provisions of the Fair Trading Act. The relevant authorities have considerable experience of applying the relevant test in practice. 
 As I have said, I am not sure—and I do not think that anyone else is, either—what effect the amendment would have. It would certainly increase uncertainty about the issue, and that would be unhelpful. Inserting the word ''substantial'' would complicate the analysis of the jurisdiction of the authorities, and would weaken the protection of public interest currently available. In my view, it is essential that we maintain that protection in the local sector. 
 Amendment No. 262 refers to clause 362(3), which incorporates new clause 44(8) to (10) into the Enterprise Act 2002. The amendment would remove the ability of the Secretary of State to amend the definition of newspapers for the purposes of the merger control regime, and would tie the definition to the exercise of certain provisions of schedule 14 to the Bill, which deals with media ownership rules. 
 I have already said that the definition of ''newspaper'' as set out in the provisions goes back 30 years. We are conscious that what constitutes a newspaper, as well as the distribution of newspapers, may well change. There may in future be a need to ensure that the provisions protecting plurality are drafted so that changes in the newspaper industry do not prevent the effective operation of the special newspaper public interest regime. It may, for example, become more common for titles to circulate across national boundaries, so that important UK titles do not necessarily circulate wholly or mainly in the UK. If that were the case, it might be appropriate to amend part of the definition of ''newspaper''. The power to amend the definition, as set out in new subsection (9) of section 44 of the Enterprise Act, is intended to enable that. 
 Amendment No. 24 relates to clause 364, but it is appropriate to deal with it now in the context of mergers involving local papers. The amendment would introduce an additional threshold that would have to be met before the Secretary of State was entitled to intervene in transactions that raised newspaper public interest concerns or did not satisfy the general jurisdictional thresholds of the merger control provisions of the Enterprise Act. As drafted, the Bill will enable the Secretary of State to intervene on newspaper public interest grounds when a transaction satisfies the general merger control jurisdictional criteria—namely when the value of turnover in the UK of the enterprise being acquired exceeds £70 million, or when the merger would create or enhance a 25 per cent. share of supply in the UK, or a substantial part of the UK. However, the criteria do not necessarily catch all the transactions that might raise public interest concerns in accurate presentation 
 of opinion, free expression of opinion or plurality. Clause 364 provides that, when a merger does not meet the standard jurisdictional criteria, but involves an enterprise that had a 25 per cent. share of the supply of newspapers or advertising in newspapers in the United Kingdom or a substantial part of it, it may be investigated on public interest grounds. There will be no competition assessment. 
 The effect of the proposed amendment would be to prevent the Secretary of State from intervening in cases involving plurality concerns that do not satisfy the standard merger regime thresholds when the total circulation of the newspapers concerned does not exceed the specified threshold. That would apply if the relevant newspaper had a significant share of supply or even if it had a monopoly at a local level. It would not be right that we should be precluded from considering whether a newspaper transfer gave rise to public interest concerns in such circumstances.

Andrew Lansley: I am not sure whether the Minister is arguing that small, local newspapers should be subject to the merger control regime on competition grounds. Surely, he was not arguing that, given that the barriers to entry to small and local newspaper markets are slim and the merger control regime is not intended to apply to small enterprises. Can he cite an example of the adverse findings relating to past merger control inquiries that have concerned newspaper acquisitions when the total circulation of the acquiring and transferred newspaper—the two parties to the merger—is below 50,000? I do not think that he can.

Stephen Timms: I do not have the circulation data about the cases to which I have drawn the Committee's attention. Relatively small weekly newspapers were included in the Bristol Evening Post and the T Bailey Forman cases. I do not know the precise circulation figures for them. The essential point is whether we think it right that there should be the ability to take public interest consideration into account in the case of local newspapers. My contention is that it is right and that we should do so.
 There has been some discussion about the 50,000 threshold. Under the Fair Trading Act regime, newspaper mergers require the prior consent of the Secretary of State. In most cases, such consent can be given only following a report on the transaction by the Competition Commission. However, in certain cases, including when the circulation of the newspaper being transferred falls below 50,000, the Secretary of State can give such consent without reference to the Competition Commission in relation to the transaction, although she retains an ability to make such a reference if she considers it appropriate. That is important. It was suggested that, if the newspaper circulation was below 50,000, that was not a possibility. That is not right. It is not a requirement. Nevertheless, there is a requirement to seek the prior consent of the Secretary of State under the current regime on pain of criminal penalties about transactions, when the circulation of the relevant 
 paper is less than 50,000, provided that the other combined circulation thresholds are met. 
 New clause 22 would restrict the approach that may be taken by the competition authorities in defining relevant markets in the context of mergers involving newspapers. It is not appropriate for Parliament to legislate the economic analysis that should be applied by the competition authorities in a merger context. The clause would apply to an investigation under the general merger control regime of the Enterprise Act that applied to newspapers as well as to the application of the special newspaper public interest criteria. 
 As members of the Committee will know, one of the aims of the Enterprise Act is to ensure that competition investigations are handled by specialist competition authorities without undue interference. As a result, it is proposed that Ministers can intervene in merger investigations only when specified public interest concerns arise. Against that background, legislating the approach to be taken by those authorities to market definition in a general merger context would be inappropriate. I am aware that the wording proposed was taken in part from provisions set out in schedule 14 of the Bill, which deals with media ownership. I do not agree that it is appropriate to incorporate provisions dealing with the identity of persons who may hold the Channel 3 licence into the merger control provisions of the Enterprise Act—which is what the new clause would do. 
 Let me conclude with the central point that the Committee must decide whether it is appropriate for there to be the possibility of applying public interest considerations in the case of local, as well as national, newspapers. My argument is that it is appropriate and that the Committee should therefore reject the amendments.

John Whittingdale: I am grateful to the Minister for replying at some length and dealing with all the points that have been raised. However, I am somewhat disappointed by the content of his remarks. The Minister initially said that the Bill was deregulatory and we have shown that, when it comes to small and local newspapers, it is not; it is more restrictive than the existing regime. It means that smaller free and paid-for local newspapers that are not subject to the regime under the Fair Trading Act will in future be subjected to discretionary scrutiny on plurality grounds under the new regime.
 The Minister said that the Bill will be deregulatory throughout the newspaper industry and it is certainly the case that in some aspects it is. However, I am not sure that it would be a comfort to the Maldon & Burnham Standard to know that the requirement on the Daily Mail to give prior notification will be removed. He went on to state that the addition of ''substantial'' would create uncertainty. It would not create uncertainty in the case of a small local newspaper; it would be fairly certain that if ''substantial'' were added, as we have suggested, it would no longer be caught by the Bill, whereas at the moment it would be. In that respect, it would be deregulatory and create certainty. 
 The Minister's argument seemed to boil down to the fact that Parliament in 1965 stated that weekly and local newspapers should be covered, and therefore, because that had been decided in 1965, we should accept that it was right. I do not know why Parliament took that decision in 1965. We were not in Government in 1965, so it was the Labour party that was responsible. I would hope that we disagreed with it then; we certainly disagree with it now. I am not persuaded by the hon. Gentleman's arguments and we wish to press the amendments to a Division. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 16.

Question accordingly negatived. 
 Clause 362 ordered to stand part of the Bill.

Clause 363 - Additional investigation and report by OFCOM

Richard Allan: I beg to move amendment No. 666, in
clause 363, page 312, line 4, after '45', insert 
 'including the grounds for such advice and recommendations'.

Peter Atkinson: With this it will be convenient to discuss the following:
 Clause stand part. 
 Amendment No. 267, in 
clause 369, page 317, line 5, leave out 'OFCOM'.
 Amendment No. 270, in 
schedule 18, page 525, line 11, leave out 'and OFCOM'.

Richard Allan: It falls to me to move amendment No. 666. Hon. Members may have noticed that it is the amendment of the beast, but it is actually a harmless amendment despite its inauspicious number. It would clarify an issue that the Minister might be able to clarify anyway: what is the amount and extent of the information that will be published when Ofcom takes an advisory role on newspaper mergers?
 The votes of Liberal Democrat Members have demonstrated that we are not opposed to Ofcom's role in the way in which Conservative Members are—there is a clear difference of political views there. However, if Ofcom is to have the role, it is important that its grounds for giving advice and making recommendations should be published in order to make the proposition workable. 
 If the grounds for the recommendations are published, it will give more clarity to newspapers, which will allow future proposals for mergers and 
 takeovers to be guided. The Minister referred to cases of the Bristol Evening Post and Mr. Sullivan and, more recently, the Express Group and Mr. Desmond. When such controversial cases arise, it would assist the newspaper industry to know not only recommendations made, but the grounds for them. 
 I understand that under schedule 16, paragraph 18, the reports from Ofcom will be published. We want either a verbal commitment from the Minister or a commitment in the Bill that the published reports will include not only the recommendations, but the grounds for them.

John Whittingdale: The amendment is not objectionable and if we must have clause 363, the amendment would marginally improve it. However, our worries are a little more fundamental than the hon. Gentleman's because we question the whole necessity of involving Ofcom in newspaper mergers and acquisitions. I suppose that that will lead me to slip into the clause stand part debate, which has been grouped with the amendments. The amendments that we tabled were designed to remove Ofcom from the process, but we object to the whole clause.
 The Bill proposes that the regime for newspaper mergers—not for other mergers—should require the involvement of four separate regulators that will make references, investigate the merger and determine any measures required after a reference. The four institutions are the Office of Fair Trading, the Secretary of State, the Competition Commission and Ofcom. It is self-evident that the involvement of so many regulators will impose burdens on those who wish to acquire a newspaper interest. They will have to spend time negotiating at least twice and possibly three times with officials on exactly the same matters, which will cause uncertainty for all involved. Advice is already required to be given to the Secretary of State by the OFT, and now it is proposed that Ofcom should conduct another investigation and produce another report that will inevitably cover some of the same ground. If a reference is made and the recommendation is that the merger cannot or should not go ahead at all or be subject to certain conditions, the Minister will have to take advice from the Competition Commission, the OFT and Ofcom again. 
 That is hardly a streamlined regime. It will increase the time that is taken, it will be bureaucratic and it will be expensive for everyone involved. Regulators will have to consult widely, which will lead to more time-consuming and expensive inquiries. On those grounds alone, we see no necessity to introduce the involvement of Ofcom when the existing regime works perfectly well. 
 However, I have a more fundamental concern. We have spent many weeks discussing the fact that, essentially, Ofcom is being established to deal with questions relating to electronic communications. It is involved in the regulation of the telecommunications industry, and of the broadcasting sector where there has been spectrum scarcity, and the existence of a limited amount of spectrum has justified it taking an interest in content. As we know, it will have a powerful content board, which will require it to reach judgments 
 on the content of the industries that it is responsible for. 
 That goes to the heart of my concern. The idea that a regulator should begin to take an interest in the content of newspapers is alarming. It has given rise to fears about what role Ofcom might take in advising the Secretary of State. At the moment, the publishing industry is not subject to restrictions that apply to other forms of media, which is right, in particular because there are no barriers to entry into it, unlike in the broadcasting sector. To allow a body whose remit includes content regulation for broadcasters to get involved in matters relating to newspaper content is dangerous. It is easy to say glibly that the freedom of the press must be guarded and defended, but it is a fundamental freedom. 
 I am sure that the Minister will say that there is no threat to the freedom of the press in this aspect of the Bill, but that is not the view of many newspapers. The Sun stated: 
''Press freedom is under threat from government regulation.
At present the Communications Bill says Ofcom . . . oversees newspapers.
This raises the alarming spectre of governments being able to influence what papers publish.
This may be an honest error by Tessa Jowell, the Culture Secretary, or her civil servants.
It may be something a tad more sinister from Industry Secretary Patricia Hewitt—who as a Kinnockite mistrusts the Press.
With parts of the Press perfectly willing to turn the Blairs into demons—and print the cruellest jibes about them—we could understand if some in government were out to get Fleet Street.
But if newspapers are put under Ofcom's umbrella, Press freedom will be dealt a dangerous and unprecedented blow.''
 Unusually, the Daily Mirror finds itself in the same camp as The Sun. It states that the only real questioning voice of the Government 
''has come from the press—and the loudest has been the Daily Mirror''.
 I am unsure whether I agree with that. 
''Now Labour is trying to control that voice.
Its weapon is something called the Communications Bill which will introduce a new supposedly independent regulatory body with restrictive powers over newspapers on the grounds of public interest.
Don't be fooled.
This is not Labour guaranteeing your rights as the public, it is Labour giving itself a free hand to do whatever it wants and silence anyone who dares to disagree.''
 Finally, I shall cite the Daily Mail. For the Government that to get the Daily Mail, the Daily Mirror and The Sun in to the same camp is quite an achievement, but in this instance they have done it. The Daily Mail said: 
''Mr. Blair's desire to crush any vestige of media independence will be put into sinister relief when Parliament gives a second reading to the Communications Bill, which, far from protecting Press freedom—which Ministers claim to believe in—will do quite the opposite.''
 In addition, Ofcom 
''as it is devised . . . will also have a say in 'public interest matters' . . . giving it an extremely dangerous potential to introduce statutory regulation in newspapers in the future.''
 The article continues: 
''In its present form, the Ofcom legislation would enable an authoritarian Prime Minister to introduce censorship, claiming to be able to act in the public interest.''
 Some of those warnings may appear a little lurid to Committee members, but there is real concern about the issue. As my hon. Friend has already said, the Minister is a courteous and intelligent man and I am sure he never intended that the Bill should usher in the kind of censorship regime about which some of the newspapers have expressed a fear. We are, nevertheless, introducing an opportunity for regulators, who are responsible in other areas for the monitoring of content, to get involved in the newspaper takeover regime. That is, as I have already argued, unnecessary and Ofcom has no obvious expertise in this particular area. 
 Ofcom will consist of people who have, until now, been involved in regulating the telecommunications sector with Oftel, or with the Broadcasting Standards Commission and the Independent Television Commission, bodies that are more involved with the content of broadcasting. None of the bodies that are coming together to comprise Ofcom have anything to do with newspapers.

Andrew Lansley: I am slightly perplexed about the Government's intention. For example, two telecommunications companies may be engaged in a merger that is significant for the purposes of merger control, but which did not give rise to significant market power and therefore did not impact on Ofcom's role in setting conditions. There is nothing in the legislation that requires the OFT to seek Ofcom's advice in relation to such a merger, even though Ofcom has explicit responsibilities for and detailed knowledge of the industry. Does my hon. Friend think it odd that Ofcom would have a little scrutiny role over the industry and that it should be explicitly given legislative power to provide advice?

John Whittingdale: My hon. Friend makes a fair point. He uses the word ''odd'' and odd is a word. However, he highlights the reason why some have attributed more sinister motives, rather than just oddness, to the clause. Ofcom will be required to provide advice to the Secretary of State in an area in which it has no obvious expertise. One assumes that in order to acquire the relevant knowledge and experience of mergers, officials from the Minister's Department might have to be seconded to Ofcom before they could take on such a role. That seems unnecessary when the OFT is already carrying out that task.
 We are concerned that the clause includes Ofcom in the process for assessing newspaper mergers and acquisitions. I have no doubt that the Minister will say that the lurid interpretation that some have put on that fact is entirely misplaced and that such fears are unfounded. I hope that he is correct. The Minister must recognise, however, that the Government have managed to unite the whole newspaper industry in expressing its concern. Therefore, they should have a good reason for including the provision requiring Ofcom's involvement. The Government should be saying, ''We realise that this may give rise to some 
 fears, but the advantages of involving Ofcom are so great that we feel the provision should be included.'' 
 We cannot see any advantages to involving Ofcom at all. Given the real anxieties about this matter and that it is not obvious what additional knowledge, experience or advice Ofcom could bring to the table, we feel that the entire clause is redundant and dangerous and should be removed.

Stephen Timms: As the hon. Member for Maldon and East Chelmsford demonstrated, the provision has been the subject of a great deal of interest in the newspaper industry, which has lobbied nationally and locally for Ofcom's role to be removed.
 I was grateful for the support expressed by the hon. Member for Sheffield, Hallam (Mr. Allan), but the hon. Member for Maldon and East Chelmsford has just treated the Committee to a sweeping denunciation. Anyone examining our deliberations might get the impression that there is unanimity on the issue, but that is not the case. The Joint Committee chaired by Lord Puttnam reported: 
''We consider that OFCOM will be able to develop sufficient expertise in media markets and plurality issues to make it well-placed to perform the advisory role envisaged for it.''
 That pre-legislative scrutiny committee examined the matter and was lobbied on the lines outlined by the hon. Gentleman, but reached a different view. It stated that the advisory role proposed for Ofcom, on which I will elaborate in a moment, was appropriate. 
 The industry's fears stem from a misapprehension of Ofcom's role in the regime. Ofcom's role in newspaper mergers is advisory and relates only to the specified newspaper public interest considerations. Ofcom will take no decisions and unlike the advice on competition from the OFT, Ofcom's advice on plurality will not be binding on Ministers. Ofcom will have no role at all in newspaper mergers unless and until the Secretary of State intervenes in a particular case. 
 At present, officials in my Department provide such advice. In future, Ofcom will provide it. That is the change being made. Ofcom will provide the advice and, as the hon. Member for Sheffield, Hallam pointed out, it will be published. That will make the process much more transparent than in the past, which is a significant benefit for the industry. Decisions on newspaper mergers that appear to raise public interest concerns will remain the responsibility of the Secretary of State and she will be accountable to Parliament for them. As the independent regulator, however, Ofcom is the body best placed to advise the Secretary of State on specified newspaper public interest considerations to help her decide whether to make a reference. 
 We are certainly not attempting to subvert press freedom or subjugate the press to the whims of politicians. The proposals relate only to merger control. It is hard to understand how one could conclude from that advisory role that we are entering the type of world described by the hon. Member for Maldon and East Chelmsford. The provision is not about content regulation. I emphasise that the Bill does not allow Ofcom to play any role in newspaper 
 content regulation—none whatever. It is not a means of introducing statutory regulation of the newspaper industry through the back door. Let me make it absolutely clear once again: we have no plans to extend content regulation to the newspaper industry. In fact, widening the availability of advice to Ministers, and making the views put to them more transparent, can only improve decision-making about those important issues, and will certainly improve public understanding of them.

Andrew Lansley: I am interested in the Minister's contention that Ofcom would not be in a position to give advice on editorial matters. What if the Secretary of State, subsequent to a reference, were minded to use the powers under clause 373, which have to do with attaching conditions to the operation of a newspaper or requiring the agreement of the relevant authority before dismissing an editor or a journalist? Is the Minister saying that there is no possibility of Ofcom giving advice to the Secretary of State, or making recommendations on the application of such provisions? I think that there is.

Stephen Timms: The clause is clear about the narrow circumstances in which Ofcom will provide advice. It will do so when it has been determined that the Secretary of State will intervene. The Secretary of State will seek advice, which will be provided by Ofcom, and that advice will be published. The change is that the advice will come not from officials in the Department, whose views will never be made known, but from Ofcom. That will be a significant improvement in the transparency of the process. It certainly does not give rise to any of the alarms and conspiracy theories that have been raised outside Committee.

John Whittingdale: The Minister says that Ofcom's remit is narrowly defined, but the clause simply says that
''The report shall contain—
(a) advice and recommendations on any . . . public interest consideration mentioned in the intervention notice''.
 Those considerations will probably include the issue of plurality, and that will require Ofcom to consider questions of content. The Minister seems to be arguing that the provision will be of huge benefit to the newspaper industry, but he must recognise that the benefit is utterly invisible to everyone involved in the industry. They think that the provision could be abused.

Stephen Timms: We are talking only about instances in which a merger is being considered, and advice is being given to the Secretary of State about whether that merger is appropriate. We have already considered examples in which matters such as the accurate presentation of news have been an issue. In those instances, officials in the Department would have provided advice, and the Secretary of State would then have taken a view. The difference is that the advice will now be provided by Ofcom. It will be published for all to see and, as always, the Secretary of State will make a decision based on it. I hope that it is clear that the proposed framework will not have any of the
 draconian effects that have been mentioned outside the Committee.
 On amendment No. 666, clause 363 provides that when the Secretary of State has intervened in a merger on newspaper public interest grounds, Ofcom will provide her with a report on the newspaper public interest considerations that she has specified. The report must include two things: first, Ofcom's advice and recommendations on the newspaper public interest considerations specified in the intervention notice, and secondly a summary of representations that it has received on those considerations. 
 The hon. Member for Sheffield, Hallam wanted Ofcom to give its grounds for its advice and recommendations, but that is not necessary. Ofcom's role in relation to the special newspaper merger regime will be purely advisory. The decision will remain with the Secretary of State. Paragraph 18 of schedule 16 requires the report to the Secretary of State to be published. Ofcom is also required to provide a summary of the representations made to it. That will provide sufficient evidence of the basis for Ofcom's advice and recommendations without it being necessary to legislate for it. It will mean a great deal more information being in the public domain about the basis for the decision, the advice itself and the background to it. 
 Amendment No. 267 would amend clause 369, which allows the Secretary of State to publish advice and information on the newspaper public interest considerations specified under clause 361 and to show how she expects the newspaper provisions to operate. It requires that, if she chooses to publish such guidance, she must consult the other players in the regime, such as the OFT, the Competition Commission and Ofcom. Given that Ofcom is to advise the Secretary of State on mergers raising newspaper public interest considerations, it is only sensible that it should be given the opportunity to comment on the draft guidance. It would only be comment. The Secretary of State would not be bound to accept any views that Ofcom offered on the draft guidance. 
 I come now to amendment No. 270 to schedule 18. Under the Fair Trading Act, the Secretary of State accepted several conditional consents to newspaper transfers. They are underpinned by criminal sanctions. Schedule 18 sets out a mechanism by which the Secretary of State can accept Enterprise Act undertakings in place of the Fair Trading Act's conditional consents. The Secretary of State may consult the Office of Fair Trading and Ofcom before deciding whether to accept such an undertaking. 
 Given that the Fair Trading Act conditional consents relate to competition and public interest issues, it seems appropriate that the Secretary of State should consult the Office of Fair Trading and Ofcom when considering whether to accept Enterprise Act undertakings in their place. The amendment would not preclude the Secretary of State from consulting Ofcom, when deciding whether to accept such an undertaking. 
 To sum up, Ofcom's role in the regime will be purely advisory. The proposals are only about merger control, not content regulation. The Government have no interest or intention in extending content regulation to the newspaper industry. The clause will not lead to a move in that direction.

Richard Allan: I am grateful to the Minister for his helpful and comprehensive response. He must be gratified by the faith that the newspaper industry has shown in staffing his Department in that it is pressing so hard to maintain a situation whereby advice comes from his officials, not Ofcom. If the amendment was a kind of beast, it was a stalking horse. The pantomime season has only just finished, so it would be most appropriate to beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 12, Noes 4.

Question accordingly agreed to. 
 Clause 363 ordered to stand part of the Bill.

Clause 364 - Extension of special public interest regime for certain newspaper mergers

Andrew Robathan: I beg to move amendment No. 382, in
clause 364, page 312, line 42, leave out from beginning to end of line 2 on page 313.

Peter Atkinson: With this it will be convenient to discuss the following:
 Amendment No. 482, in 
clause 364, page 313, line 6, leave out 'or newspaper advertising'.
 Amendment No. 483, in 
clause 364, page 313, line 11, leave out from 'newspapers' to 'shall' in line 12.
 Amendment No. 484, in 
clause 364, page 313, line 13, leave out 'or newspaper advertising'.
 Amendment No. 485, in 
clause 364, page 313, line 20, leave out 'or newspaper advertising'.
 Amendment No. 486, in 
clause 364, page 313, line 27, leave out 'or newspaper advertising'.
 Amendment No. 487, in 
clause 364, page 313, line 28, leave out 'or newspaper advertising'.
 Amendment No. 488, in 
clause 364, page 313, line 34, leave out subsection (4).

Andrew Robathan: The beginning of the explanatory notes to clause 364 states that it amends section 59 of the Enterprise Act
''which currently makes provision for the Secretary of State to intervene and serve a 'special intervention notice' in relation to an exceptional category''—
 and now come the critical words— 
''of mergers involving government defence contractors.''
 We understand what the Enterprise Act is about. 
 The clause also introduces a new subsection (3D) to section 59 of the Enterprise Act. It allows a special public interest merger reference to be made where a newspaper with at least 25 per cent. of the advertising in newspapers in the UK is involved in a merger. The amendments would remove the provision and the reference to advertising. There is nothing to stop such a reference being made in the ordinary way under chapter 1 of part 3 of the Enterprise Act. We do not suggest that there is anything wrong with that as a general principle, but we cannot see that advertising should have anything to do with the special considerations under section 58 of the Enterprise Act, as set out in clause 361, which are the accurate presentation of news, free expression of opinion and plurality of views in newspapers. 
 In the case of that provision, the only considerations are those in proposed new section 58(2A). A reference is proposed when only one paper carries the requisite 25 per cent. market share of advertising in newspapers—that is 25 per cent. of the whole newspaper advertising market—and there is no increase in that share. It is difficult to understand how that can be relevant when the market share of the paper itself is not relevant. 
 I shall cite an example. A paper with, say, 5 per cent. of the newspaper market could be covered under the provision, because it carried more than 25 per cent. of the advertising. That might be unlikely, because advertisers want to advertise where the circulation is greatest, but that is my point. If the issue is about the market share of the paper as a paper, it is already catered for in the Bill. The only reason for the provision is that the Government anticipate its use when there is less than a 25 per cent. market share for the paper itself. Will the Minister justify that? Why do the Government think that, when a paper carries 25 per cent. of the advertising and has less than 25 per cent. of the share of the market as a newspaper, it is particularly relevant to look at the accurate presentation of news, the free expression of opinion and the plurality of views? 
 The amendment was drafted on the advice of the Advertising Association. We are not saying that newspaper advertising should not be examined by the Commission, but when the newspaper has less than 25 per cent. of the market share, why should it be referable under the new provision simply because it carries 25 per cent. of advertising? Why should the special public interest considerations have to be looked at in the light of such a merger when they are not apparently relevant to any other paper with less than 25 per cent. of the newspaper market? 
 Advertising is an ordinary commercial product and should be treated the same as any other product under chapter 1 of part 3 of the Enterprise Act. Newspapers with 25 per cent. of the market share can rightly anticipate special merger references, but those with less should be free to further their commercial interests just as any other enterprise would be. 
 Finally, for the benefit of the Minister, I wish to point out that if he were to accept amendment No. 382, it would remove one of the two references to a 
''substantial part of the United Kingdom''.

Stephen Timms: The hon. Gentleman started well. I listened carefully to what he said and I can give him some encouragement on that score. We are looking for a proxy for the level of influence that a newspaper has in the community that it serves—that is what we want to measure. That could be because of the newspaper's level of circulation or distribution. The share of supply of newspapers test would enable us to look at transactions involving titles that have a 25 per cent. share of supply in terms of circulation or distribution. The influence of a newspaper may also be measured by the share of advertising revenue that it generates, because newspapers can only attract a large proportion of advertising if they are influential in their target communities, otherwise there is no point in placing advertising in them.
 A transaction involving such a newspaper could raise a specified newspaper public interest concern. 
 I noted what the hon. Gentleman said and because he tabled the amendment, my officials have held discussions with officials at OFT about how it might operate the share of supply test in the extended jurisdiction regime. I want my officials to pursue those discussions further and if the hon. Gentleman withdraws the amendment, I shall consider the matter further before we consider the Bill on Report and, if appropriate, I shall table suitable amendments. 
 Should that further reflection lead us to conclude that we should not move amendments on Report, I shall write to the hon. Gentleman before then. I can offer him the reasonable prospect that we might be able to move in the direction for which he argued.

Andrew Robathan: The Minister is, as always, courteous and reasonable, and he knows that I do not like to go against that. I think that the point about the ''substantial part of the United Kingdom'' swayed him. I thank him for his words, and I thank his officials for the hard work that they will carry out. With the hope that the Minister will move an amendment on Report that might be better than ours, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

John Whittingdale: I beg to move amendment No. 383, in
clause 364, page 313, line 22, leave out 'their parties'.
 I am not sure that I have quite the same hopes for this amendment, but I have a small degree of hope for one or two of those further down the Order Paper. 
 The amendment is moved in the spirit of inquiry. I am not sure what is meant by the phrase: 
''transactions concerned differ as to . . . their parties''.
 Does that relate to sales of newspapers because each sale will obviously be to a different party? It is curious that the phrase is included in the clause. 
 When we consider advertising, what is the point of allowing supply to be treated as different if the parties are different? If an advertiser buys space in different papers, should a purchase from each paper be treated as a separate form of supply? If that is the case, there will be many references under the provision because many papers could have at least 25 per cent. of the market from each advertiser. 
 That might not be the purpose of the reference, in which case I retreat. I want the Minister to explain the curious way in which the clause is worded.

Stephen Timms: The amendment would change the wording of new section 59(6C). The wording of that mirrors the wording of the general merger regime in the Enterprise Act 2002, which was adopted from our old friend the Fair Trading Act. The identity of the parties to a transaction has been treated as relevant when deciding whether the share of supply test is satisfied for a considerable period. There is no compelling reason why we should adopt a different approach now.
 The amendment would introduce different tests for establishing whether the share of supply test is satisfied in cases that fall under the general merger regime and the special newspaper public interest regime. It would be unduly burdensome to ask the decision-making authority to calculate the share of supply in two different ways. Given the familiarity of all members of the Committee with the Fair Trading Act 1973 and that fact that that has not caused difficulties during the past 30 years, I hope that the Committee considers it appropriate to leave the words in the Bill.

Andrew Robathan: Tell us what it means.

Stephen Timms: The hon. Gentleman is shouting at me. The identities of the parties to a transaction have been treated as a relevant factor in deciding whether the share of supply test is satisfied for a long time.

John Whittingdale: I am still not sure whether that is entirely clear. If it is in the Fair Trading Act, it must be right.
 In the spirit of ensuring consistency, which has occupied a lot of our time today, I will not press the amendment. However, I hope that those who read with interest our proceedings will now be a little clearer about the Government's intentions in this area. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 364 ordered to stand part of the Bill. 
 Clauses 365 to 368 ordered to stand part of the Bill.

Clause 369 - Advice and information in relation

Question proposed, That the clause stand part of the Bill.

Peter Atkinson: With this it will be convenient to discuss the following:
 New clause 21—Publication of reasons relating to orders amending section 58(2A) or (2B) of the Enterprise Act 2002— 
'In section 107 of the Enterprise Act 2002 (further publicity requirements)— 
 (a) in subsection (8)(b) at the beginning there shall be inserted ''subject to subsection (8A)'', and 
 (b) after subsection (8) there shall be inserted— 
 ''(8A) Such reasons shall, in the case of subsection (7)(b) where the order affects section 58(2A) or (2B), be published not later than the time the order is published or if it is not reasonably practicable to publish the reasons by that time, not later than three weeks after that time. 
 (8B) Where such reasons ('the main reasons') are published after the time an order affecting section 58(2A) or (2B) is made, the reasons for the delay in publication shall be published together with the main reasons.''.'.
 New clause 23—Better regulation principles to apply in relation to newspaper mergers— 
'The following section shall be inserted in the Enterprise Act 2002 after section 119— 
 ''119A. Application of better regulation principles 
 In carrying out their functions under this Part in respect of newspaper mergers, the OFT and OFCOM shall have regard to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.''.'.

John Whittingdale: These new clauses try to ensure better regulatory practice on the part of the regulators, which I think we all agree is desirable. They cover slightly different areas. New clause 21 is related to the publication of reasons relating to orders amending section 58(2A) or (2B). It amends the Enterprise Act and requires reasons for the making of an order to be published. The new public interest considerations for newspaper mergers are set out in the original Enterprise Act.
 Section 107(8) of the Enterprise Act allows the reasons to be published after the making of an order if it is not reasonably practicable to publish them at the same time. Where the publication is delayed on that ground, there is no requirement to publish the reasons within any set period of time. We are concerned that where there is a newspaper merger and the public interest considerations are amended at around the same time, the parties to the merger will not know the reasons for amending the considerations until after the investigation has been completed. Therefore, the parties will not know why the amendment has been made, even though they might be required to defend their plans in the light of the new criteria. It is strange that it is thought to be necessary to have unlimited time for publishing reasons that one assumes are known at the time when the order is made. We have suggested that three weeks should be more than enough time in which to publish those reasons, and we also think that the reasons for the delay should be 
 published. That is not a huge change: it is relatively uncontroversial to say that there should be a three-week period in which to make it clear why it was felt necessary to amend the terms. 
 New clause 23 also relates to the better regulation principles. Its purpose is to ensure that the primary regulators should always have in mind the principles of transparency, accountability, proportionality, consistency and accurate targeting of regulatory activities. We dealt with that at the beginning of our discussion of the Bill. It is extremely important that Ofcom should always have at the front of its mind the need to apply these regulatory principles—as should everyone else who is involved in the regulation of the media. I cannot see why the Government might object to that, as they are on record as saying that it is very important that these regulatory principles should be applied. To remove all shadow of doubt about that, we have moved this new clause. I hope that the Minister will consider these two small changes in the same spirit in which they have been proposed.

Stephen Timms: New clause 21 would impose an additional standard of publication requirements for orders made by the Secretary of State in relation to the newspaper public interest considerations. Parliament has already considered and approved the publication requirements for orders affecting public interest considerations in the Enterprise Act.
 The newspaper public interest considerations in this case do not differ in any way from any other public interest considerations specified under that Act and have nothing to do with Ofcom or the extended jurisdiction regime. There is no case for applying a different standard of publication requirements for newspaper public interest consideration. The hon. Member for Maldon and East Chelmsford accepted the argument that I put to him a few moments ago on the basis of consistency, and I hope that he will also accept that one. 
 Turning to new clause 23, clause 361 disapplies the general duties specified in clause 3 for Ofcom's functions under this part of the Bill. The newspaper merger provisions will operate as an integral part of the Enterprise Act. It would therefore be inappropriate for Ofcom to pursue different regulatory principles from the other authorities operating that regime. In particular, it would be inappropriate for Ofcom to have regard to the desirability of promoting competition in examining questions of accurate presentation of news, free expression of opinion and the need for plurality of views in the United Kingdom press. That does not mean, however, that Ofcom will carry out its newspaper merger functions in a vacuum of regulatory duties. The principle of administrative law will require Ofcom to fulfil its advisory role in a consistent fashion. The need for transparency is also fully appreciated. 
 Again, on the basis of consistency I hope that the hon. Member for Maldon and East Chelmsford will choose not to press a vote on the new clause.

John Whittingdale: Just because something is not specified in one place does not mean that it should not be specified in this part of the Bill. I would have hoped
 that the argument would have been judged on its merits. However, I accept the Minister's assurances as some consolation.
 Question put and agreed to. 
 Clause 369 ordered to stand part of the Bill.

Clause 370 - General advisory functions of OFCOM

Question proposed, That the clause stand part of the Bill.

Andrew Lansley: I do not want to delay the Committee, but the Minister did not respond to the question of whether Ofcom would have an advisory function in relation to the setting of conditions on mergers arising from a public interest intervention under clause 373. But it will. That is perfectly clear from clause 370, which refers to advice from Ofcom to the Secretary of State in relation to
''the taking . . . of enforcement action under Schedule 7.''
 That could extend to the circumstances under which editors are appointed and dismissed or the operation of a newspaper. Ofcom's advice could virtually extend to editorial matters.

Stephen Timms: The clause will allow Ofcom to advise the Secretary of State on any newspaper public interest case in which she has intervened and on which it has produced a report should she request such advice. However, Ofcom will be able to give advice only on mergers that raise such considerations in the specific circumstances of the Secretary of State's intervention set out out in subsection (1) or when requested to do so in relation to a particular case. The alarm raised on the issue is entirely inappropriate.
 Question put and agreed to. 
 Clause 370 ordered to stand part of the Bill. 
 Clause 371 ordered to stand part of the Bill.

Clause 372 - Monitoring role for OFT

John Whittingdale: I beg to move amendment No. 479, in
clause 372, page 318, line 13, after 'operation,' insert 'in relation'.
 You almost deprived me of my moment of glory, Mr. Atkinson. I am delighted to move this amendment and I am optimistic about its chances. 
 The Bill does not make sense as currently drafted. It states: 
''with a view to carrying out a detailed analysis in each case of the operation to that case of the consideration specified in section 58''.
 At best, that is poor English. In the interests of good drafting, we propose to amend the clause to read ''in relation'' to that case. I shall sit down and await my moment of glory from the Minister.

Stephen Timms: I am slightly hurt, because the current wording does work. However, the hon. Gentleman's proposal also works. We have considered the matter carefully and, on balance, the wording he proposes
 reads better. I am therefore happy to accept the amendment.
 Amendment agreed to. 
 It being Five o'clock, The Chairman proceeded, pursuant to Sessional Order C relating to Programming [29 October 2002] and the Order of the Committee [10 December 2002], to put forthwith the Questions necessary to dispose of the business to be concluded at that time. 
 Clause 372, as amended, ordered to stand part of the Bill. 
 Clauses 373 to 375 ordered to stand part of the Bill. 
 Schedule 16 agreed to. 
 Further consideration adjourned.—[Mr. Jim Murphy.] 
 Adjourned accordingly at Five o'clock till Thursday 6 February at five minutes to Nine o'clock.